Guidance - Expedited Inquiry - Request for Review of a Decision to Disregard a Request (ATIA Section 9)

This Guidance Document is intended to help applicants and public bodies understand the information required by the Commissioner when conducting an expedited inquiry into the head of a public body’s decision under section 9 of the Access to Information Act (ATIA).  This document may be updated over time.  The current version will be on the OIPC website.

In this document, “Commissioner” means the Information and Privacy Commissioner or the Commissioner’s delegate.  References to a “public body” may include the head or the head’s delegate.

Overview

When an applicant who has made a request for access to information under ATIA section 7(1) receives a decision from the head of a public body under section 9, the applicant may ask the Commissioner to review that decision under Part 3 of ATIA.

Reviews under section 9 are conducted as an Expedited Inquiry.  The Commissioner will not authorize mediation under ATIA section 61 where a public body has decided to disregard an access request under section 9.  Access to information is a quasi-constitutional right that is premised on relatively tight timelines and an obligation for the public body to respond quickly.  For the right of access to be meaningful, it must be timely. [1]

Section 9 of ATIA grants a public body the power to disregard an access request in specific circumstances:

9(1)  The head of a public body may disregard a request under section 7(1) if

(2)  Where the head of a public body has disregarded a request, the applicant must be told

(a) the reasons for the decision to disregard the request, and

(b) that the applicant may ask for a review of that decision under Part 3.

(3) The public body must notify the applicant that the applicant’s request has been disregarded within 30 business days after the public body receives the request.

(4) Despite subsection (3), if the applicant’s request is being disregarded under subsection (1)(d), the public body must notify the applicant that the applicant’s request has been disregarded within 30 days after receiving the applicant’s response to the public body’s request for further information under section 7(3).

[1] Alberta Energy v Alberta (Information and Privacy Commissioner), 2024, ABKB 198 at para 76; rev’d on other grounds, 2025 ABCA 16

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Section 9 Review – Expedited Inquiry Process

Once an applicant submits a complete written Request for Review Form - ATIA of a public body’s section 9 decision to disregard an access request, the parties will receive confirmation of the section 9 expedited inquiry and a Notice of Inquiry setting out submission deadlines and other information.

Generally, the public body will be required to provide a submission on the Form Expedited Inquiry – Review of a Disregard Decision under ATIA Section 9, and the applicant will be provided an opportunity to respond to the public body.  The parties are required to copy each other on their submissions.[2]  Once the expedited inquiry process is complete, the Commissioner will review the parties’ submissions, make a determination on the issues, and issue a decision (Order).  The Commissioner’s Order will be provided in writing.

[2] Note: Parties are required to copy submissions to all other parties.  Where circumstances warrant, upon request, the Commissioner may decide to accept an in camera submission from a party.  An in camera submission is one that is not provided to the other party.  In camera submissions will not be accepted unless the Commissioner has issued a decision accepting an in camera submissions.  If a party to an expedited inquiry wants to make an in camera submission, they must follow the process set out in the Form Request to Provide an In camera Submission.

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Applicant Requirements to Request a Review of a Public Body’s Section 9 Decision

To proceed to an expedited inquiry of a public body’s section 9 decision, the following steps are required from an applicant, or the expedited inquiry cannot proceed:

• Complete the Request for Review Form – ATIA (the applicant must check the box in the Form confirming their intent to have the public body’s decision to disregard their request reviewed and that the review will proceed by expedited inquiry)
• Provide a copy of the Public Body’s decision under ATIA section 9
• Deliver a copy of the written Request for Review Form to the head of the public body that made the decision
• A request for review of a public body’s section 9 decision must be made within 60 business days after the person asking for the review is notified of the decision (ATIA section 59(2)). The Commissioner may allow a longer period of up to 30 additional business days

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Public Body Requirements for an Expedited Inquiry of a Section 9 Decision

Section 9(2) of ATIA states that where the head of a public body has disregarded a request, the applicant must be told:

1. the reasons for the decision to disregard the request, and
2. that the applicant may ask for a review of that decision under ATIA Part 3.

Public Bodies are expected to provide the requested information in the form, Expedited Inquiry - Review of a Disregard Decision Under ATIA Section 9.  In completing this form, a public body may refer to the paragraphs (or locations) of its decision that correspond to the reasons provided to the applicant for disregarding the request.

A public body bears the burden to provide sufficient evidence to establish that the section 9 decision is reasonable or justified in the circumstances.  A public body is expected to “put its best foot forward with evidence” to support its decision to deprive the applicant of their quasi-constitutional right of access.[3]

The public body will be required to provide a copy of its submission to the applicant and the applicant will be given an opportunity to respond to the public body’s submission.

Generally, once the public body and the applicant have provided their submissions (or had an opportunity to do so), submissions will be closed and the Commissioner will issue an Order.  The Commissioner will not typically seek additional information from the parties.  In rare circumstances, the Commissioner may request additional information, or a party may request permission from the Commissioner to make an additional submission.

[3] Alberta Energy v Alberta (Information and Privacy Commissioner), 2024, ABKB 198 at para 21; rev’d on other grounds, 2025 ABCA 163

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Applicable Sections of ATIA

The public body should select all subsections of section 9 that it applied in its decision to disregard the applicant’s access request(s).  Please note the public body should fill out the Form only for the subsections that were relied on in making the decision.

Below is a non-exhaustive table of factors for each subsection of ATIA section 9 a public body may consider when it decides to disregard an access request.

Section 9(1)(a)

Responding to the request would unreasonably interfere with the operations of the public body or amount to an abuse of the right to make a request because the request has been made repeatedly or in a systematic nature

In order to apply this subsection, a public body must be satisfied that both requirements of this provision are met.  This means that: 1) responding to the request would unreasonably interfere with the operations of the public body OR would amount to an abuse of the right to make a request 2) BECAUSE the request has been made repeatedly OR in a systematic nature.

A public body must explain its reasons for deciding that at least one of the factors for both points 1) and 2) above are satisfied.

Information that may assist the Commissioner in a review of the public body’s decision under this subsection includes:

Would unreasonably interfere with the operations of the public body

Any access request will interfere with a public body’s operations to some extent.  A public body bears the burden to establish that the request at issue would unreasonably interfere with its operations i.e. describe the public body’s operations and explain how the access request varies from a typical request that the public body processes.

In reviewing the public body’s decision, the Commissioner may consider evidence about the following factors that support the public body’s decision under this section:

• The size of the public body
• The number of hours required to provide the applicant with access to a record
• The number of staff required to provide the applicant with access to a record
• The regular duties of the staff whose involvement is required to provide the applicant with access to a record
• The impact on the regular operations of the public body

OR

 Amount to an abuse of the right to make a request

A public body should explain its decision for determining that the request amounts to an abuse of the right to make a request.  For there to be abuse, there must be evidence of misuse or improper use of the applicant’s access rights under ATIA.

AND

Repeatedly

A request is repetitious if it has been made for the same records or information more than once.  If relying on this factor, a public body should provide evidence of the applicant’s previous requests that demonstrate the request for the same records or information has been made previously (e.g. the wording is similar or identical, or the responsive records are the same).  The public body should clarify whether some or all of the request(s) at issue have been made repeatedly.

OR

Systematic nature

A request that has been made in a systematic nature includes a pattern of conduct that is regular or deliberate.  If relying on this factor in its reasons for decision, a public body should refer to evidence of the applicant’s previous requests or other behaviours that demonstrate the request has been made in a systematic nature.

Section 9(1)(b)

The request is abusive, threatening, frivolous or vexatious, or is made in an abusive or threatening manner.

In its decision the public body must explain its reasons for finding the request is abusive or threatening, or frivolous or vexatious or is made in an abusive or threatening manner.  The public body may refer to information to support its decision, such as the applicant’s history or interactions with the public body, or other circumstances that support the public body’s decision under this section.

Section 9(1)(c)

The information the request relates to has already been provided to the applicant or has been made available to the public under section 90 or 91.

In its decision, the public body must explain its reasons for deciding the information the request relates to has already been provided to the applicant OR that the information has been made available to the public under section 90 or 91.

Has already been provided to the applicant

If the public body made its decision under this section, it should:

• Provide information about the previous information that was provided to the applicant and when that information was provided
• Explain how the previous information provided relates to the current request
• Provide clarification as to whether all of the information requested has been provided, or only some, and if not all, explain what information has not been provided to the applicant.

OR

Has been made available to the public under section 90 or 91

The information the request relates to has been made available to the public under section 90 or 91.  These sections state:

Records available without request

90(1)  The head of a public body may specify categories of records that are in the custody or under the control of the public body and are available to the public without a request for access under this Act.

(2)  Any information that the head of a public body would be authorized or required to refuse to give access to under this Act may be excluded from a record that is available to the public without a request for access under this Act.

(3)  The head of a public body may require a person who asks for a copy of an available record to pay a fee to the public body, unless such a record can otherwise be accessed without a fee.

(4)  Subsection (1) does not limit the discretion of the Government of Alberta or a public body to release records that do not contain personal information.

(5)  Despite anything to the contrary in this Act, there is no right to request a review in relation to a decision respecting whether to make a record available to the public under this section.

Access to manuals, handbooks and guidelines

91(1)  The head of every public body must make any manual, handbook or other guideline used by employees of the public body in decision‑making processes that affect the public available to the public without a request for access under this Act.

(2)  Any information that the head of a public body would be authorized or required to refuse to give access to under this Act may be excluded from the manuals, handbooks or other guidelines that must be made available to the public under subsection (1).

(3)  The head of a public body may require a person who asks for a copy of a manual, handbook or other guideline to pay a fee to the public body unless the manual, handbook or other guideline can otherwise be accessed without a fee.

(4)  Subsection (1) does not limit the discretion of the Government of Alberta or a public body to release a manual, handbook or other guideline that does not contain personal information.

If the public body made its decision under this section it should:

• Describe what information has been made available to the public and how it can be accessed
• Confirm when the applicant was notified the information was available to the public (and provide copies of the relevant correspondence)
• Explain how the information available to the public is the same as that being requested by the applicant
• Confirm whether all of the information requested by the applicant is available to the public under section 90 or 91, and if it is not all available, describe which parts of the applicant’s request are not available to the public and whether that information will be provided to the applicant.

Section 9(1)(d)

Despite receiving further information from an applicant under section 7(3), the request does not meet the requirements of section 7(2)(c) because the public body does not have information that is sufficiently clear to enable the public body to locate and identify the record within a reasonable time with reasonable effort.

A public body that has made a decision under section 9(1)(d) must provide the following:

• A copy of the public body’s request for further information under section 7(3),
• A copy of the applicant’s response to the public body’s request for further information under section 7(3), and
• Confirmation that the applicant was notified by the public body within 30 days after receiving the applicant’s response

Section 9(4) of ATIA states:

(4)  Despite subsection (3), if the applicant’s request is being disregarded under subsection (1)(d), the public body must notify the applicant that the applicant’s request has been disregarded within 30 days after receiving the applicant’s response to the public body’s request for further information under section 7(3).

The public body must explain its reasons for deciding that despite receiving further information from an applicant under section 7(3) the request does not meet the requirements of section 7(2)(c) because the public body does not have information that is sufficiently clear to enable the public body to locate and identify the record within a reasonable time with reasonable effort.

Sufficiently clear to enable the public body to locate and identify the record within a reasonable time with reasonable effort

If the public body made its decision under this section it should:

• Explain why it decided the applicant’s response was not sufficiently clear i.e. explain what is unclear about the request
• Re Locate and identify – Explain why the public body is unable to locate and identify the responsive record(s) – this may include information about the public body’s records management system such as where physical or electronic records are stored or other relevant information that prevents the public body from responding to the request
• Re reasonable time with reasonable effort – Explain what the public body would consider a reasonable time to locate and identify the record and why this request does not meet that standard. Also explain what the public body would consider a reasonable effort and why this request does not meet that standard.  A public body should include other relevant information such as whether it extended its time to respond under ATIA section 16.
• Information about the public body’s usual procedures for locating and identifying records, as well as information about its usual timelines for processing requests will be of assistance in reviewing decisions under this section.

Section 9(1)(e)

The request is overly broad or incomprehensible

A public body must explain its reasons for deciding the request is overly broad or incomprehensible.

If a public body sought additional clarification from the applicant about the request, it should provide a copy of that communication and the applicant’s response (if any).  If the public body did not seek any additional clarification, it should explain its reasons for not doing so.

• Overly broad – Access requests can be broad. The public body should explain its reasons for deciding the request is overly broad, and include information as to whether it attempted to narrow the request with the applicant.  The public body should also include any response from the applicant.  The public body may include information about the number of responsive records, the time required to respond, or other factors that the public body considered would impact its response.

OR

• Incomprehensible – the public body should explain its reasons for deciding the request is incomprehensible, and include information as to whether it attempted to clarify the request with the applicant. The public body should also include any response from the applicant.

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Disregard Decision - Order

After an expedited inquiry is complete under ATIA section 62, the Commissioner will review the submissions, make a determination on the issues, and issue an Order under ATIA section 64.  Orders are generally published and a copy of the Order will be provided to the public body and the applicant.

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June 2025